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The plaintiff owned the copyright in a video showing him being attacked by killer whales at Sea World. The plaintiff had licensed the video at least twice to television news programs in 1987 and 1988. In 1996, the plaintiff sued a producer who used footage from the video without his consent in a television show called “The Extraordinary.” The parties settled the initial action out of court and the defendants agreed not to broadcast any portion of the video. However, in 2003, one of the settlement defendants licensed “The Extraordinary” series to Universal Television Network (UTN) for broadcast on the Sci-Fi Channel. The plaintiff filed suit against the producer for breach of the settlement agreement and against the producer, UTN, NBC Universal and 20 unknown persons for copyright infringement, violation of statutory and common law rights of publicity, and violation of common law privacy rights. The producer and UTN stipulated to infringing plaintiff’s copyright by licensing and broadcasting the series containing the unauthorized footage from the video. All the defendants challenged the plaintiff’s right of publicity and privacy claims, and the court granted their motion for summary judgment on these claims.

The court held that the plaintiff did not have a reasonable expectation of privacy in a video that he had previously licensed for broadcast on national television. The court rejected plaintiff’s argument that once-public facts could become private again and held that, even if the video were considered private, its broadcast was protected as a newsworthy event. Regarding the right of publicity, the court held that the plaintiff did not show that the defendants used his likeness for commercial advantage. “The market would not have paid Smith any consideration for his appearance in the portions of the video that appeared in the episode because his identity added no value to those excerpts.” The court granted the defendants’ motion for summary judgment on the non-copyright claims. The court also dismissed the copyright claim against Universal, holding that “Smith has not attempted to ‘pierce the corporate veil’ to hold NBC liable for the activities of its partly owned subsidiary.”